Summary: Israel has been condemned for allegedly violating international law when Israeli naval commandoes intercepted a flotilla of six vessels in international waters off the coast of Gaza, and killed nine Turkish activists on board one vessel, the Mavi Marmara. This Beyond Images Briefing addresses this claim by outlining the following arguments:

- Israel is in a state of armed conflict with Hamas in Gaza

- The Hamas threat is sustained by the smuggling of weapons into Gaza

- A naval blockade is a legitimate form of self-defence under international law

- It is lawful to intercept and detain vessels which threaten to break a blockade

- The flotilla vessels announced their intention to break the blockade while sailing in international waters, and it was therefore lawful for Israel to intercept them there

- The Israeli naval commandoes acted in self-defence on the Mavi Marmara, reasonably fearing they could be killed by activists on the ship

Key messages: Israel’s naval blockade of Gaza is a legitimate act of self-defence. It does cause hardship for the Palestinian people of Gaza, but it’s there for a reason. Its establishment is consistent with international law, and responsibility for it ultimately rests with Hamas and its rejectionist ideology and practices. Following the flotilla clash, and the international reaction, Israel has nonetheless relaxed its enforcement of the blockade

What happened…

On 31 May 2010, Israeli naval commandoes boarded six vessels which were members of the ‘Free Gaza’ mission and on a self-proclaimed mission to bring humanitarian supplies by sea to Gaza and “break the Israeli blockade”.

The interceptions took place in international waters off the Gaza coast. Israel’s proclaimed goal was to make vessels to sail to the Israeli port of Ashdod from which their supplies could be unloaded, checked and then taken via the established land crossings into Gaza.

Five of the vessels in the flotilla cooperated with the Israelis, peacefully. But when Israeli naval commandoes boarded the sixth vessel, the Mavi Marmara, they were assaulted. The situation escalated and several of the commandos were seriously injured. The commandoes opened fire, and nine Turkish ‘activists’ were killed. A fierce battle is raging over the truth of what happened on the Mavi Marmara, which is to be investigated via several inquiries.

The loss of life on the Mavi Marmara prompted a massive international outcry, against Israel.

A key allegation is that the Israeli operation to intercept the Mavi Marmara was illegal under international law in the first place. This Briefing addresses that claim.

1. Israel is in a state of armed conflict with Hamas in Gaza

Hamas rules Gaza. And it is in a state of permanent war with Israel. Its charter is explicit about this (see Beyond Images Briefing 165)

Hamas may tactically moderate its stance, in the short-term, with talk of ‘truces’. But it does not moderate its long-term ideology

Hamas has converted Gaza into a heavily armed frontline military base, in an Iranian sponsored confrontation with Israel (see for example Beyond Images Briefing 191, on the Hamas arms build-up, and Briefing 195 on the rocket offensive against Sderot in southern Israel)

Hamas has fired or permitted the firing of thousands of rockets and missiles from Gaza at Israeli civilian targets in recent years

In addition, Hamas has been responsible for the deaths of hundreds of Israeli men, women and children in suicide bombing attacks within Israel (see Beyond Images Briefing 78)

The orchestrators of those attacks operate freely in Gaza today. Many are in the senior echelons of Hamas, and regarded as “resistance leaders”

In short, Israel is in a state of “armed conflict” with Hamas. After the extremely violent Hamas coup in Gaza in June 2007 (see Beyond Images Briefing 198) Israel formally confirmed that to be the legal position between the two entities

2. The Hamas threat is sustained by the smuggling of weapons into Gaza

Hamas sustains its threat to Israel by smuggling huge amounts of weaponry into Gaza, mainly via tunnels under the Egyptian border

Egypt is taking steps to curb this, by means of a reinforced concrete fence being built underground, to block tunnel construction

Hamas has in the past also tried bringing weaponry into Gaza by sea, and if it had a free route to do so, unchecked, this would readily become its main line weapons supply

3. A naval blockade is a lawful form of self-defence under international law

It is a legitimate form of self-defence under international law for a sovereign state to impose a naval blockade against an adversary with which it is in armed conflict

That is Israel’s goal in imposing the Gaza naval blockade. Its consequences are harsh. And it is tough to police. But in the context described above, the naval blockade is not illegal

Israel has tried to alleviate the impact of the blockade by enabling huge quantities of humanitarian supplies into Gaza, overland, including food, medical supplies and basic necessities.

The international community is itself committed to preventing the smuggling of arms to Hamas in Gaza, via UN Security Council resolution 1860 of January 2009 while obliges UN member states to “prevent illicit trafficking in arms and ammunition”

Critics of Israel’s naval blockade, such as the Red Cross, do not suggest any alternative way for Israel to prevent weapons smuggling into Gaza

4. It is lawful under international law to intercept and detain vessels which threaten to break a blockade

A country may impose at sea as long as it does not bar access to the ports and coasts of neutral third party states. There’s no suggestion that Israel has barred such access

A country imposing a naval blockade must give notice of the existence of the blockade. Israel publicised the existence of the blockade repeatedly, via the recognised and accepted international maritime organisations.

Furthermore, Israel notified the captains of the flotilla vessels in real-time and repeatedly that they were sailing towards an area where a maritime blockade was in force, and that Israel intended to enforce the blockade

When a maritime blockade is in effect, no vessels can enter the blockaded area – civilian or military. It is lawful to detain a civilian vessel that seeks to break the blockade

5. The flotilla announced their intention to break the blockade while sailing in international waters, and it was therefore lawful to intercept them there

The flotilla leaders made very clear via press releases and orally that they intended to “break the blockade”. The routes of the vessels indicated their clear intention to violate the blockade

An authoritative handbook of the US Naval Command on the Law of Naval Operations provides that a vessel is considered to be in an attempt to break a blockade from the time it leaves its port with the intention of evading the blockade

Israel proposed that they could unload their supplies in Ashdod, as an alternative way of getting the aid in Gaza. But this proposal was rebuffed (revealing that the flotilla members were not on a humanitarian mission)

Given the crews’ proclaimed intention to violate the naval blockade, Israel exercised its right under international law to enforce it

6. The Israeli commandoes acted in self-defence on the Mavi Marmara, reasonably fearing that they could be killed by activists on the ship

When Israeli commandos abseiled onto the deck of the Mavi Marmara, they were ferociously assaulted by Turkish activists, armed with clubs, iron bars and sticks. Several were heavily beaten. One was reportedly stabbed. Another was thrown over the deck, crashing 30 feet to the deck below. Much of this has been captured on film and will be the subject of fierce claim and counterclaim as the facts are investigated. Israel calls it an attempted “lynch”

The commandoes had boarded the vessel armed only with paintball guns, which are non-lethal, and used for crowd control. It was only after the direct violence against the commandos escalated that they received permission from their commanding officers to fire live ammunition

Israel argues that the lives of its commandoes was in real danger and they acted in self-defence to save their lives. Israel triggered the incident; but the Turkish activists on the Mavi Marmara triggered the violence